The Harmful Digital Communications Act IS NOT ENOUGH
The Harmful Digital Communications Act (2015) is a powerful piece of legislation that was enacted to address the issue of online abuse. However it is not sufficient to address every issue of online hate, harassment and abuse.
It was passed by the National government to deal with ‘cyberbullying’, and in some ways it has been successful. Netsafe, the approved agency, reports high success rates in mediation and content removal.
There are, however, some issues.
The law (while broad) is designed for only a limited number of situations where online harm occurs. Specifically, it appears to work well in many cases of one-to-one abuse, where an individual who is being abused can contact Netsafe and identify the abuser.
There have however been instances, some high profile, where seemingly clear cut cases of abuse and harassment are deemed to not breach the act,such as when a Facebook user commented that writer Lizzie Marvelly should try “bungy jumping without the cord”.
Netsafe are effective but their work is reliant on the platforms’ community standards and enforcement policies to remove content if the abusers themselves won’t. Netsafe are not an “enforcement agency.” That role is left to the courts.
Unfortunately little support is available for those making HDCA complaints if mediation is unsatisfactory. Netsafe are legally bound to act as impartial mediators, and so are restrained from filling the role of victim support if they recommend a case proceed to court.
There is a concerning rate of drop off between cases that Netsafe recommends proceed to court and those that actually do. This points to a lack of victim support during this process. As well as harming individuals, this contributes to a shortage of case law which would benefit Netsafe.
The tools of the HDCA appear unsatisfactory in other cases of serious abuse online, such as when an organised group (often using ‘shill’ accounts and fake identities) are targeting an individual. There are also cases where hate is being directed at a group of people, but not necessarily targeted at an individual who can lay a complaint, where there is still a considerable harmful ‘bystander’ effect.
The HDCA is also an isolated piece of legislation, and a high bar. Most people who face harassment online will never use its mechanisms (though the rate of personal harm complaints is rising year over year).
While the HDCA is an effective tool for many instances of online abuse and harm, there needs to be much more done to address the areas the HDCA fails to cover.